Thread: Religious freedom for physicians Board: Purgatory / Ship of Fools.


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Posted by Josephine (# 3899) on :
 
A US judge just decided that physicians have the right to refuse to treat women who have had abortions and trans folks as a matter of religious freedom. I am struggling to wrap my mind around that. What are the boundaries between a patient's needs and a doctor's liberty?
 
Posted by betjemaniac (# 17618) on :
 
quote:
Originally posted by Josephine:
A US judge just decided that physicians have the right to refuse to treat women who have had abortions and trans folks as a matter of religious freedom. I am struggling to wrap my mind around that. What are the boundaries between a patient's needs and a doctor's liberty?
AIUI in the UK medical staff have the right to refuse to be involved in abortions as a matter of conscience - but they certainly can't withhold treatment from people once they've had an abortion. That seems a reasonable compromise to me.
 
Posted by Jane R (# 331) on :
 
I am struggling to wrap my mind around the idea of a medical professional who checks your medical history to see if you've ever done anything they disapprove of before deciding whether or not to treat you.

Do they refuse to treat murderers as well? If not, are they saying abortion is worse than murder? Even the Pope wouldn't go that far.

That whirring sound you can hear is Hippocrates spinning in his grave.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
Refusal re past decisions or particular lifestyle? I am certain that this would result in human rights complaints and professional college sanctions in addition in Canada.

There is some sort of line somewhere. I am aware of surgeons who will not operate on smokers who refuse to stop smoking, i.e., you're on a waiting list for surgery for your shoulder rotator cuff which will occur within the next 2-3 months, however you will be taken off the list and surgery not provided if your pre-op check-up shows you have been smoking. This one, I think is probably right and defendable from a medical standpoint re tissue healing.

I am also aware that physicians may not refuse to deal with issues like birth control and family planning if by refusing to, e.g., write prescriptions for birth control pills or refer someone for an abortion, the patient will have no other physician to see for the service. It is considered acceptable to pass to a colleague in the same clinic. But we have many places where there is one physician, and they attend the community once every second week for a day or two.

The point is that the physician has rights, but these are necessarily balanced by the rights of the patients.
 
Posted by Josephine (# 3899) on :
 
quote:
Originally posted by betjemaniac:
AIUI in the UK medical staff have the right to refuse to be involved in abortions as a matter of conscience - but they certainly can't withhold treatment from people once they've had an abortion. That seems a reasonable compromise to me.
Yep, doctors here can refuse to be involved in performing abortions. The justice in this case said that doctors can refuse to treat people who have ever had an abortion.
 
Posted by Eutychus (# 3081) on :
 
quote:
Originally posted by Jane R:
Do they refuse to treat murderers as well?
Healthcare in prisons where I am is notoriously bad, and it is not infrequent, so I am often told, for medical personnel to tell inmates they do not deserve treatment due to their offence (why the medical staff should even know that information is beyond me).
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by Jane R:
Do they refuse to treat murderers as well?
quote:
Originally posted by Eutychus:
Healthcare in prisons where I am is notoriously bad, and it is not infrequent, so I am often told, for medical personnel to tell inmates they do not deserve treatment due to their offence (why the medical staff should even know that information is beyond me).
I've seen many prisoners transferred to hospital and never once heard that sentiment expressed from medical staff. I have often found accompanying prison warders reluctant to grant privacy for the consultation or for procedures.
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by betjemaniac:
AIUI in the UK medical staff have the right to refuse to be involved in abortions as a matter of conscience - but they certainly can't withhold treatment from people once they've had an abortion. That seems a reasonable compromise to me.
quote:
Originally posted by Josephine:
Yep, doctors here can refuse to be involved in performing abortions. The justice in this case said that doctors can refuse to treat people who have ever had an abortion.
betjemaniac has it right. In hospital-world this doesn't present a problem because abortions are done by specific teams and anyone with a problem doesn't take a job in those teams. But a real problem arises when general practitioners refuse to refer women for abortions, and either insist that they find someone else to act as referrer (which just delays things) or simply obstruct access to care (which is worse).

The justice references in the US sounds bonkers. I presume this is a note in a specific case with limited precedent-setting rather than a definitive supreme-court ruling with general application?
 
Posted by Eutychus (# 3081) on :
 
quote:
Originally posted by mdijon:
I've seen many prisoners transferred to hospital and never once heard that sentiment expressed from medical staff.
I should perhaps have said "uneven". I've never heard any complaints from the local secure unit at the hospital, but I've heard plenty from other quarters. Mileage may vary by country.
quote:
I have often found accompanying prison warders reluctant to grant privacy for the consultation or for procedures.
This is also true in my experience. I personally know an inmate whose intervention was halted after pre-op preparation had been completed because the accompanying prison officer, present in the room, refused to wait around for the results of a blood test to come through (this case was reported and dealt with).
 
Posted by HCH (# 14313) on :
 
As I understand it, a more common reason for a physician to refuse to treat a patient is the fear of malpractice litigation. An aged patient may be living in great pain which could be remedied by surgery but be refused treatment because of the risk of dying during surgery. Although the patient may be willing to take the risk, the surgeon fears lawsuits by the next of kin.
 
Posted by orfeo (# 13878) on :
 
Why didn't he just come right out and say that doctors have a right to not treat sinners?

That would've been the logical conclusion. And would've shown clearly just what the implications are.
 
Posted by Josephine (# 3899) on :
 
A link for those who want more information.
 
Posted by Enoch (# 14322) on :
 
In a country where there is a simple cash nexus, where there is no NHS, where doctors are simply competing in the market for patients as customers, on what basis can a customer insist that a doctor sell his or her skills to that customer rather than any other?

A person working in the NHS is bound by the rules that govern that service. What, though, would apply outside, where one is treating private patients for cash?

Here, there are some situations where a person providing services cannot discriminate, e.g. on racial grounds. As it happens, that would preclude discrimination against a trans person.

A person providing medical services privately can discriminate on the grounds that the customer can't pay, isn't going to pay, and I suspect on the grounds that the doctor doesn't think he or she can cure the customer. Whether it would preclude one not providing services to someone just because one doesn't like them, or for a reason that isn't covered by anti-discrimination legislation, is rather less clear.

I'm not a doctor and have never been one. I don't know.
 
Posted by Golden Key (# 1468) on :
 
quote:
Originally posted by orfeo:
Why didn't he just come right out and say that doctors have a right to not treat sinners?

That would've been the logical conclusion. And would've shown clearly just what the implications are.
This, by Green T, , is currently marked "Top Comment" there:

*Old Joke*

Patient: "Doc, it hurts when I do this."

Doctor: "So? Don't do that."

*New joke*

Patient: "Doc, it hurts when I do this."

Doctor: "Don't do that, you disgusting sinwad, and never darken my door again."

NOTE: There's an increasingly vile stream of comments just below that.
[Eek!]
 
Posted by Ricardus (# 8757) on :
 
quote:
Originally posted by Josephine:
A link for those who want more information.
That's mad.

If I understand the article correctly, sexual discrimination is expressly outlawed by the ACA. Up to now this has been interpreted as also outlawing discrimination specifically against women who have had an abortion, but the judge in question says that's not a valid implication.

Setting aside the question of whether he's right or not - can it really be the case that doctors can discriminate against patients as long as their grounds for discrimination aren't specifically outlawed by legislation?
 
Posted by orfeo (# 13878) on :
 
Law will say yes. What medical ethics might say, I'm not sure.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
It would be interesting to see what would happen if a physician refused to treat soldiers because war is evil. Presumably that'd be fine too.

Except for public opinion.

[ 05. January 2017, 23:11: Message edited by: no prophet's flag is set so... ]
 
Posted by Baker (# 18458) on :
 
I wonder if doctors who have refused to treat certain classes of people took a physician's oath, either the Declaration of Geneva, or the Hippocratic Oath?
https://en.wikipedia.org/wiki/Declaration_of_Geneva

Declaration of Geneva

https://en.wikipedia.org/wiki/Hippocratic_Oath

Hippocratic Oath
 
Posted by Gee D (# 13815) on :
 
Do people actually take those oaths? Not done here.
 
Posted by Anglican_Brat (# 12349) on :
 
quote:
Originally posted by Gee D:
Do people actually take those oaths? Not done here.
That is what I was wondering, my understanding is that the Hippocratic Oath is nowadays presented to doctors and medical student as an example of a code of ethics to live up to, not as a legally binding covenant.
 
Posted by lilBuddha (# 14333) on :
 
Appears that the doctor in question took the oath of "judge lest he be judged yourself". So very Christian.
 
Posted by Gramps49 (# 16378) on :
 
Working with transgender people takes a person with special skills. I have no problem if a person presents beyond the doctor's skill sets that the doctor will refer to someone more qualified.

Very few doctors, though, would refuse to treat a woman who has had an abortion.
 
Posted by Josephine (# 3899) on :
 
As long as "very few" is more than none, the rule sets up a situation where a woman might find it necessary to lie about her medical history to get medical care.

And, given that, what if the doctor doesn't believe a patient who says she's never had an abortion?

Given that at least a quarter of all women in the US have had an abortion (as many as 1/3 by some counts), that's ... worrisome.

And while it would be understandable that a doctor might choose not to provide services they're not qualified to provide (we had a doctor choose not to treat one of our kids because the child's needs were more complex than he felt comfortable handling) -- if a person has a broken leg, or a sore throat and fever that might be strep, does it matter whether they're cis or trans? Why would it be okay for the doctor to choose not to treat them?

I'm trying to figure out how it violates the doctor's religious liberty to treat a woman who has had an abortion, or a trans person. I am not seeing it.
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by Gee D:
Do people actually take those oaths? Not done here.
quote:
Originally posted by Anglican_Brat:
That is what I was wondering, my understanding is that the Hippocratic Oath is nowadays presented to doctors and medical student as an example of a code of ethics to live up to, not as a legally binding covenant.
No, people don't take oaths very much in the UK, and especially not the original Hippocratic Oath with all its stuff about promising to teach one's teacher's children and promising not to undertake surgery (and, ironically here, promising not to assist in abortions).

There was a modern version which got some currency especially in the US, but even then I think only the minority of schools use it and often it is read out as an "affirmation" rather than an oath.

That said, the UK medical regulator would take a very dim view of anyone acting in the way permitted by this judgement and a UK doctor would be disciplined.

You must not unfairly discriminate against patients or colleagues by allowing your personal views to affect your professional relationships or the treatment you provide or arrange. You should challenge colleagues if their behaviour does not comply with this guidance, and follow the guidance in paragraph 25c if the behaviour amounts to abuse or denial of a patient’s or colleague’s rights.

I find it much harder to understand what the medical regulator in the US thinks - or even whether the relevant regulator is federal or state. Someone who knows more about this might comment. We had a previous thread about discrimination vs a same-sex couple's child where I remember learning that the US regulator had very much less teeth than the UK regulator.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Josephine:

I'm trying to figure out how it violates the doctor's religious liberty to treat a woman who has had an abortion, or a trans person. I am not seeing it.
Some incoherent belief that any misfortune that befalls such a person is evidence of God's judgement. As opposed to regular people who get ill or break a leg through general misadventure.

Coupled with some equally incoherent notion that a person like that must not be helped.

Quite how such beliefs can survive a passing acquaintance with, say, the Book of Job or the parable of the Good Samaritan, I've no idea.
 
Posted by Gee D (# 13815) on :
 
My impression is that the Hippocratic and suchlike Oaths owe more to Hollywood than to any formal teaching.

[ 06. January 2017, 06:31: Message edited by: Gee D ]
 
Posted by Penny S (# 14768) on :
 
Would a doctor be justified in refusing treatment to a colleague who had refused treatment to someone identified in this ruling on the grounds that refusing treatment to someone needing it is evil?

Jesus healed a woman who would have been identified as failing under this sort of ruling - the continuous loss of blood making her ineligible to be part of the religious community when she sneaked up on him. And he didn't withdraw the healing when he spotted her on the grounds that she had violated his cleanness in the eyes of the religious rules.

Whited sepulchers.
 
Posted by orfeo (# 13878) on :
 
I would be interested in sources about this ruling (will try looking for some myself when I get the chance), because some of what I've found so far talks about the performance of abortions and gender reassignment surgery.

Which is a very different thing to the general treatment of people who have had those procedures in the past.
 
Posted by orfeo (# 13878) on :
 
Okay, this gets interesting and particularly awkward...

From this Reuters report... well it is fractionally ambiguous, but it presents the argument and the decision as being about making doctors perform abortions and gender reassignment surgery.

But then there are more recent reports like this one that seem to AGREE that was the basis of the argument/decision, but go onto say that what the law actually said was related to ANY treatment of a person who had had an abortion or gender reassignment surgery.

So this potentially means that while the effect of the judge's ruling was to permit general discrimination, this might not have been what the judge intended.

To put it another way, we may be dealing with a situation where saying "the judge permitted discrimination" is relying on an understanding of the law that the judge didn't have.

Which is not to say that I think the reports are erroneous. The judge might well have stuffed up mightily. But I'd want to see the actual decision before expressing a firmer view on that (I tried to hunt it down, but even though I found a source of decisions from the relevant district it didn't seem to be there).
 
Posted by mdijon (# 8520) on :
 
I can't read the 46 pages myself. Looking at the article above and a few other articles through google it seems that the ruling finds that the Obama administration ruling on the affordable care act may place conservatives under pressure to become involved in abortions and that the definition of gender is not clear enough.

Looking at Reed Charles O'Connor's record this seems quite likely a delaying and obstructing tactic. But I can't make head or tail of what it actually does or changes apart from obstruct the implementation of the affordable care act.
 
Posted by Gee D (# 13815) on :
 
Yes - it's one thing to refuse to carry out an abortion and another refusing to treat someone in a serious condition after a backyard one.
 
Posted by orfeo (# 13878) on :
 
Found a link to the actual judgement on this page. Scrolling through it now...

...I really, really hate the writing style of American judges.
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by orfeo:
But I'd want to see the actual decision before expressing a firmer view on that (I tried to hunt it down, but even though I found a source of decisions from the relevant district it didn't seem to be there).
Here it is. When I said I couldn't read it what I meant was that understanding 46 pages of this sort of language is beyond me.
 
Posted by orfeo (# 13878) on :
 
Okay, so, some interesting things in there (I swear, they're interesting!).

1. It's clear that the federal government's view was that the rules would NOT force doctors to carry out particular procedures.

2. There is some very faint acknowledgement that the government also argued that religious exemptions would be available, and were part of the law.

3. A key part of the federal government's argument was that attacking the whole rule was far too vague, general and speculative, and that the plaintiff medical folk should be waiting until a question came up about whether a specific policy was discriminatory. The plaintiffs response was along the lines of "but MAYBE you'll try to make us do gender reassignment surgery and we want the reassurance that there's no way you could make us do that".

(Which strikes me as rather like the arguments I sometimes hear of "but we might be sued unfairly! so you have to stop anyone being able to sue us!")

4. There's a fair bit of legal discussion about whether there was any power for these rules to extend or flesh out the meaning of "sex discrimination" in the way that they did. Which is interesting to ME because that's the kind of question about power that I often have to deal with. If the US Congress makes laws about sex discrimination, can you then deal with an issue like abortions that by its nature is particular to women? This is the bit I've discussed at length below.

5. It is important to recognise this is a preliminary injunction, stopping implementation of the rule for now. It stops a new law coming into force, so the status quo stays in place.

----------------------------------------------

My own view is that parts of it are insanely technical and display no interest in making the judgement readable... but within that there's some stuff which I find rather dubious and some stuff where the judge might, MIGHT be onto something.

Some of the stuff about him agreeing with the religious folk about what the law does, I'm pretty dubious about. But I think the trickier bit is: even if you agree with the government about what the law does (just forbids discrimination when treating people who are transgender or who have had an abortion in the past)... was there power to actually make that law?

I encounter situations quite frequently where an idea for a lower-level law is perfectly laudable and I can completely understand why someone wants to make the law, but the power to make it is lacking.

When the chief law-making body (Congress in the case of the US) makes a law, the administration often gets given a power to fill in the details and the gaps. But what it can't do is expand the scope into new areas.

And it's at least questionable whether you can take a law about discrimination on the basis of sex and then say lower down that (1) it also applies to gender identity, and (2) it also applies to a past history that only a woman can have. The reason it's questionable is because most sex discrimination laws I know about have been explicitly expanded to apply to things like gender identity, pregnancy or breastfeeding, in the high level law. Because it was felt it was NOT clear that you could take a reference to sex discrimination and expand it.
 
Posted by orfeo (# 13878) on :
 
Short version: even if you throw away all the stuff about religious freedom, the judge might possibly be right simply because there was no legal authority to make a rule about transgender people or women who had had an abortion.
 
Posted by mr cheesy (# 3330) on :
 
All other things being equal, doesn't this mean that if you happen to be sick after an abortion in certain communities, you might find it hard to get any care at all?

Ii'm not sure if it ever happened, but there was talk of British pharmacists have a moral opt-out. Presumably they'd have to refer to someone else who would dispense the medication?

Which does seem like a shaky moral position. If you have a moral problem with an aspect of your job, get a different job.

[ 06. January 2017, 08:23: Message edited by: mr cheesy ]
 
Posted by Enoch (# 14322) on :
 
I don't seem to have expressed my question clearly enough. Let me ask it another way. Does the Cab Rank rule apply to doctors? Do they have anything similar?

If it does, or if there is something comparable, then they can't, as doctors, refuse to set someone's broken leg on the grounds that the person previously had an abortion.

If it doesn't, then however deplorable we think this might be, then unless there is some specific obligation in the individual doctor's terms of service, e.g. because they are part of the NHS, then aren't they are entitled to pick and choose at random whose money they will take and whom they will treat?

So, positive legislation may mean they can't discriminate on grounds of race, sex etc. However, if a doctor said, 'I don't like people with red hair. I was bullied by a teacher with red hair as a child. I have an irrational hatred of all red haired people. So I will not treat them", what's to stop that?

One might get round the inability to challenge that particular offensive and irrational line by arguing that it was indirect racial discrimination. More white people than black people have red hair. But that's a two step argument. It might not work.


I'd quite like to be persuaded that it could be stopped, but if medical care is simply something provided by the market, what is there to stop that?

[ 06. January 2017, 08:36: Message edited by: Enoch ]
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Enoch:
So, positive legislation may mean they can't discriminate on grounds of race, sex etc. However, if a doctor said, 'I don't like people with red hair. I was bullied by a teacher with red hair as a child. I have an irrational hatred of all red haired people. So I will not treat them", what's to stop that?
A rapid loss of business and reputation, hopefully.
 
Posted by mdijon (# 8520) on :
 
I refer you to the GMC paragraph I quoted above. They'd lose their license in the UK.
 
Posted by Anglican_Brat (# 12349) on :
 
The problem I see it is that religious freedom is being used to accommodate conservatives who want a comfortable world where they don't have to deal with people who might challenge their beliefs. It is ironic that some conservatives complain about the "snowflake" milennial generation who want a world where they are free from offense, pot calling the kettle black, here.

This is a trivial example I use, but I like it, when I was in Toronto, I regularly visited the Tim Hortons' to buy my usual breakfast, a sausage sandwich with a hash brown and coffee. One cashier was an Arab woman, wearing a hijab. She was quite kind and polite in her dealings with me. Thinking about it, assuming she is a devout Muslim, she probably herself wouldn't consume the sausage and bacon sandwiches there. But she saw no difficulty reconciling her religion with the fact that she was there to do a job and if her customers wanted to have bacon and sausage for breakfast, she had to serve them.

Religious freedom, is the freedom to practice one's religion, and in one's interior life, to follow one's morality. However, it is mistaken to interpret religious freedom to impose upon another one else's life.
 
Posted by HCH (# 14313) on :
 
An interesting notion is that some physicians might be able to drum up more business by advertising that they do not discriminate on such grounds. (This still does not help a person in a small community with only one source of medical aid.)

Another notion is that:
-- Dr. A asks patient B if she has ever had an abortion.
-- Patient B says no.
-- Dr. A refuses to believe this.
-- Patient B files a defamation-of-character lawsuit against Dr. A.

By the way, are such physicians asking their male patients if they have ever contributed to a pregnancy that was later aborted?
 
Posted by Gee D (# 13815) on :
 
I have no idea if the law of defamation has been modified in Illinois, but historically the essence of the tort was publication of material which adversely affected character to another person - ie, not the person whose character is being spoken of, nor the person publishing it.

Back to main topic - AFAIK, there is no medical equivalent to the cab rank rule which binds me and my colleagues. But in any event, a doctor who refused to carry out any abortion could simply say that such an operation was outside the area of expertise/practice and decline to perform it in the particular case.
 
Posted by Josephine (# 3899) on :
 
quote:
Originally posted by Enoch:

I'd quite like to be persuaded that it could be stopped, but if medical care is simply something provided by the market, what is there to stop that?
I think that the practice of medicine is governer by more than just market forces. I believe that being granted a medical lifense obligates a doctor to certain ethical standards. But I am not sure. Someone else might know more.
 
Posted by Golden Key (# 1468) on :
 
Re ethics and Hippocratic oath:

These might be of help.

--A search on "ethics" at the American Medical Association's site brings up lots of hits, including a link to their Journal of Ethics.

-- Hippocratic oath (Wikipedia). Has both ancient and modern versions, Declaration of Geneva, and what schools still use them. Also has links to a variety of other professional oaths.
 
Posted by Soror Magna (# 9881) on :
 
quote:
Originally posted by Josephine:
...
I'm trying to figure out how it violates the doctor's religious liberty to treat a woman who has had an abortion, or a trans person. I am not seeing it.
Cooties.

I wish I lived in a world where liberty meant "having everything my way".
 
Posted by Jane R (# 331) on :
 
Also, as someone else has pointed out, if they are really of the opinion that abortion is worse than murder then they should be asking all their male patients if they have ever talked their wives/girlfriends/Significant Others into having an abortion...
 
Posted by mdijon (# 8520) on :
 
I dug up the previous thread.

So it looks like the AMA is a glorified club, and the relevant regulator would be in Texas Medical Board. Looking here I can't find much in the way of comprehensive ethical codes.

I don't know if what seems to me "light touch" ethical oversight is common in the States, if Texas is an outlier, or if I'm missing that some other Federal authority has a mandate.
 
Posted by Enoch (# 14322) on :
 
quote:
Originally posted by Golden Key:
Re ethics and Hippocratic oath:

These might be of help.

--A search on "ethics" at the American Medical Association's site brings up lots of hits, including a link to their Journal of Ethics.

-- Hippocratic oath (Wikipedia). Has both ancient and modern versions, Declaration of Geneva, and what schools still use them. Also has links to a variety of other professional oaths.
The question isn't what the Hippocratic Oath says. The wikilink above says that it isn't legally binding in the US.

The question is whether there is a code of professional conduct that governs the doctor in question where he or she is practising, and equally critical, whether there is a body that can strike him or her off the register for breaking it?

If there isn't, then most of what we are discussing becomes irrelevant. It also calls into question whether in that particular jurisdiction, the practice of medicine is entitled to be called a profession.
 
Posted by Josephine (# 3899) on :
 
quote:
Originally posted by orfeo:
Short version: even if you throw away all the stuff about religious freedom, the judge might possibly be right simply because there was no legal authority to make a rule about transgender people or women who had had an abortion.
Thanks, orfeo. That's interesting. It's sort of like asking whether there's standing for someone to sue, then? If you don't have standing, you can't sue, no matter what the issue is.

In this case, you're saying that the judge was saying that the administration didn't have the equivalent of standing here? That it wasn't their place to define sex in this way?

Most laws, as I understand it, are written in such a way that the rule-making authority in the executive branch has to define many of the necessary terms. So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by Josephine:
So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.
I'm no lawyer either, but that would sound very dangerous to me. What would stop the administration defining sex in a totally off-beam way to get some other agenda into the act?

Of course not every single word can be defined in any piece of writing, I guess the test is whether that word is considered ambiguous or not?
 
Posted by Josephine (# 3899) on :
 
I think, in the past, there was a certain level of trust, that each side would do the right thing. And, of course, we have our checks and balances -- so if the executive goes off the rails, the judiciary is supposed to pull them back on track.

Which may be what this judge thought he was doing, from comments up the thread. I don't know.
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by orfeo:

And it's at least questionable whether you can take a law about discrimination on the basis of sex and then say lower down that (1) it also applies to gender identity, and (2) it also applies to a past history that only a woman can have.
AIUI there is significant case law from before the UK Equality Act 2010 that established discrimination on grounds of pregnancy as an example of sex discrimination under the 1975 act.
This case law explicitly rules out discrimination on grounds that can be proxies for sex (you can't discriminate against pregnant people, people with ovaries, people who have had hysterectomies, and so on, because those categories can all only apply to women).

(Irrelevant sidenote: Now that changing sex is legal, a (trans-)man can have been pregnant, had a hysterectomy and so on. And, of course, it's now possible for a legal man to be pregnant.)

The 2010 act explicitly calls out pregnancy and breastfeeding.

(In the case of gender identity, we are dealing with an array of different cases: people who have legally changed sex, people who have not legally changed sex, but present as a member of the opposite sex, people with an ambiguous or non-traditional gender presentation and so on. You could probably make an easier case for someone who has legally changed sex to be covered by existing sex discrimination laws than the other cases.)
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Josephine:
quote:
Originally posted by orfeo:
Short version: even if you throw away all the stuff about religious freedom, the judge might possibly be right simply because there was no legal authority to make a rule about transgender people or women who had had an abortion.
Thanks, orfeo. That's interesting. It's sort of like asking whether there's standing for someone to sue, then? If you don't have standing, you can't sue, no matter what the issue is.

In this case, you're saying that the judge was saying that the administration didn't have the equivalent of standing here? That it wasn't their place to define sex in this way?

Most laws, as I understand it, are written in such a way that the rule-making authority in the executive branch has to define many of the necessary terms. So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.
Okay, yes, you do have to make definitions. But you can't "define yourself into power".

Congress' powers to make laws are limited by the Constitution. It doesn't get to decide for itself what the Constitution means, the Supreme Court will do that.

And the administration's powers to make laws are in turn limited by whatever Congress said.

One of the most important cases in Australian legal history had to do with an attempt to ban the Communist Party. The law relied on our power about defence, and the High Court said no, you can't just announce at the start of the law that you've decided the Communist Party is a threat to the defence of Australia and therefore every member of the party is guilty of treason. There's got to be some evidence for that.

The most famous (to lawyers) sentence in the case is this one:

quote:
A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.
Here, let's just say without going into any further detail that the administration has been authorised to make laws with respect to sex discrimination. That isn't a power to make a law about anything that the administration decides counts as sex discrimination.

Part of the judge's argument is that Congress has defined "sex discrimination" in a pretty narrow way, and that it has consciously treated "gender identity" as something quite distinct from that. He's saying that the administration can't then come along and say "well, WE think that discrimination against trans people is a kind of sex discrimination, so we can make laws about discrimination against trans people".

I'm not sure whether I agree with the judge about the first bit (whether Congress had defined sex discrimination so narrowly), but it's at least an arguable position and it's not entirely clear cut.
 
Posted by orfeo (# 13878) on :
 
quote:
Originally posted by Leorning Cniht:
quote:
Originally posted by orfeo:

And it's at least questionable whether you can take a law about discrimination on the basis of sex and then say lower down that (1) it also applies to gender identity, and (2) it also applies to a past history that only a woman can have.
AIUI there is significant case law from before the UK Equality Act 2010 that established discrimination on grounds of pregnancy as an example of sex discrimination under the 1975 act.
This case law explicitly rules out discrimination on grounds that can be proxies for sex (you can't discriminate against pregnant people, people with ovaries, people who have had hysterectomies, and so on, because those categories can all only apply to women).

(Irrelevant sidenote: Now that changing sex is legal, a (trans-)man can have been pregnant, had a hysterectomy and so on. And, of course, it's now possible for a legal man to be pregnant.)

The 2010 act explicitly calls out pregnancy and breastfeeding.

(In the case of gender identity, we are dealing with an array of different cases: people who have legally changed sex, people who have not legally changed sex, but present as a member of the opposite sex, people with an ambiguous or non-traditional gender presentation and so on. You could probably make an easier case for someone who has legally changed sex to be covered by existing sex discrimination laws than the other cases.)
Yeah, okay, that is fairly similar to the history of the Australian Sex Discrimination Act that I've been reminding myself of.

When breastfeeding was specifically added, it was seen as making it clear that this was a case of sex discrimination, because the law already said you couldn't discriminate based on "a characteristic that appertains generally to persons of a certain sex". It wasn't an expansion of the law. Similarly with some more specific references to pregnancy.

In 2013, when sexual orientation, gender identity and intersex status were added, though, they were seen as entirely new grounds. The Sex Discrimination Act was seen as the most logical home for them (we don't have a single national anti-discrimination act, long and complicated story with constitutional quirks), but they were NOT viewed as just being types of sex discrimination.

I think I'd be pretty comfortable in saying that women who have had abortions ought to be protected under sex discrimination laws. But transgender people? That's trickier.
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by mdijon:
quote:
Originally posted by Josephine:
So I'd expect the administration to define what was meant by sex for the purpose of the law, if the law as passed didn't include a definition. But I Am Not A Lawyer, so I could be totally off base about it.
I'm no lawyer either, but that would sound very dangerous to me. What would stop the administration defining sex in a totally off-beam way to get some other agenda into the act?

Of course not every single word can be defined in any piece of writing, I guess the test is whether that word is considered ambiguous or not?
It's theoretically possible for the legislative act to include a power for definitions to be added by non-legislative regulation but that would be extremely unusual here at least. Regulations are normally limited to technical matters. Even then, there us normally a requirement that regulations are to be presented by administration to the legislature, and that in turn the legislature may disallow them within a set period.
 
Posted by Leorning Cniht (# 17564) on :
 
quote:
Originally posted by orfeo:
But transgender people? That's trickier.
Quite.

I think we've discussed on another thread that the US department of education wrote a letter earlier this year telling schools and colleges that it expected them to behave in particular ways towards transgender students, and citing Title IX (the no sex discrimination in education law) as its authority.

The letter tells schools and colleges amongst other things to treat a transgender student according to their preferred gender identity (including choice of pronouns, presence in single-sex accommodation, sports teams, bathrooms, and so on.

It gives as the opinion of the federal government that a student's sex is defined by whatever gender the student claims, regardless of what any identity documents might say.

There is some debate about whether the department of Education has the authority to issue such a pronouncement. (Although the debate is likely to be moot, because it's hard to imagine the policy staying the same with Mike Pence in charge.)

It's clear that the Obama administration chose this route (declaring that transgender was covered by existing sex discrimination legislation) because it wouldn't have got a new law past a Republican Congress. It's far less clear that it didn't overstep.
 
Posted by Golden Key (# 1468) on :
 
Leorning Cniht--

Overstep in what way, please?
 
Posted by orfeo (# 13878) on :
 
Overstep their legal authority.
 
Posted by Gee D (# 13815) on :
 
quote:
Originally posted by Golden Key:
Leorning Cniht--

Overstep in what way, please?
The legislation sets out various tests and parameters, binding on the administration. Does that legislation permit what the administration did in this case? That's what's being doubted.
 
Posted by no prophet's flag is set so... (# 15560) on :
 
I am quite familiar with professional regulation, not as a lawyer, but as a professional who gets consulted about how the 'standard act' template gets applied for several health professions. It is possible that the court of law will make a ruling that could be contrary to the code of conduct for a profession (which forms part of the ethics for the profession, specific to areas of practice).

Professional regulation relies on complaints to a regulatory college which has the role of "protecting the public". Certainly a court ruling would be a defense to a complaint, but a member of the public who felt discriminated against due to a medical practitioner abiding by this ruling by a court of law is still free to complain against the physician, with all the review of everything by a college even so. None of which would make me confident that any physician who decided to take the court decision on board and practice in accord with it would be safe from complaint.

Tangential example:
a health professional commented in social media about their family member's care external to employment and is currently awaiting a penalty hearing (Link to news story. My point is that professional regulating colleges have immense power. [/end tangent]

Lawsuits are quite easy and cheap to file as well. The insurance companies which carry the practice insurance for health professionals usually do not do much in the way of practice advice, but they are certainly free to. Which means that if an insurance carrier found they were paying substantial legal costs for complaints in this area (legal costs start when a complaint is laid, regardless whether it is based on anything or even proceeds), they could advise they were going to modify policies and not pay in this area or cap the amount they'd pay. Insurance companies like to end cases and settle for the lowest costs.

How all of this might play out in the situation cited in the OP is to be seen I think. I think each individual doctor would be advised to be careful.
 
Posted by mdijon (# 8520) on :
 
quote:
Originally posted by no prophet's flag is set so...:
It is possible that the court of law will make a ruling that could be contrary to the code of conduct for a profession (which forms part of the ethics for the profession, specific to areas of practice).
Certainly in the UK the General Medical Council guidance is more stringent and more detailed than the legal position. For instance the GMC obliges one to intervene as a good Samaritan in certain circumstances where there is no legal duty to act.

I wouldn't have characterized that as "contrary" though - rather that the professional conduct goes further than the minimum required by law and places an obligation where none might exist according to the law.

Is there anything you are aware of that is contrary in the sense of giving conflicting obligations?

[ 09. January 2017, 04:01: Message edited by: mdijon ]
 


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